B-134353, JANUARY 20, 1958, 37 COMP. GEN. 485

B-134353: Jan 20, 1958

Additional Materials:

Contact:

CONTRACTS - FOREIGN LAW - JUDICIAL NOTICE - PRECEDENCE OVER CONTRACT TERMS A FOREIGN LAW WHICH IS NOT CITED BUT WHICH IS ALLEGED TO BE THE BASIS FOR A CLAIM FOR ADDITIONAL COSTS INCURRED INCIDENT TO A FIXED PRICE CONTRACT IS NOT FOR RECOGNITION WITHOUT SPECIFIC PROOF. EVEN IF A CONTRACTOR ESTABLISHES THAT UNDER A FOREIGN LAW CERTAIN CLAIMS FOR ADDITIONAL COSTS IN PERFORMANCE OF A FIXED-PRICE CONTRACT ARE ALLOWABLE. 1958: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7. YOU ALLEGE THAT THE UNITED STATES IS OBLIGATED TO YOU AS FOLLOWS: PACKING COSTS. YOU CLAIM THAT YOU ARE ENTITLED TO PACKING COSTS BECAUSE GOVERNMENT "SHIPPING CLERKS" REFUSED TO ACCEPT DELIVERY OF THE ORDER UNTIL THE BOOKS WERE WRAPPED IN STRONG PACKING PAPER.

B-134353, JANUARY 20, 1958, 37 COMP. GEN. 485

CONTRACTS - FOREIGN LAW - JUDICIAL NOTICE - PRECEDENCE OVER CONTRACT TERMS A FOREIGN LAW WHICH IS NOT CITED BUT WHICH IS ALLEGED TO BE THE BASIS FOR A CLAIM FOR ADDITIONAL COSTS INCURRED INCIDENT TO A FIXED PRICE CONTRACT IS NOT FOR RECOGNITION WITHOUT SPECIFIC PROOF, AND CLAIMS BASED ON A GENERAL ALLEGATION OF FOREIGN LAW MUST BE REJECTED. EVEN IF A CONTRACTOR ESTABLISHES THAT UNDER A FOREIGN LAW CERTAIN CLAIMS FOR ADDITIONAL COSTS IN PERFORMANCE OF A FIXED-PRICE CONTRACT ARE ALLOWABLE, THE FOREIGN LAW AND CUSTOM MAY NOT TAKE PRECEDENCE OVER THE SPECIFIC TERMS OF THE CONTRACT AND OVER SPECIFIC STATUTORY PROHIBITIONS.

ORIGINALLY, YOU CLAIMED DM 17,878.84 PLUS 10 PERCENT INTEREST PER ANNUM SINCE MAY 28, 1953, UNDER YOUR CONTRACT TO SUPPLY BOOKS TO THE OFFICE OF THE U.S. HIGH COMMISSIONER FOR GERMANY ( HICOG). BY SETTLEMENT DATED JUNE 7, 1957, OUR OFFICE ISSUED AN ALLOWANCE TO YOU IN THE AMOUNT OF DM 9,578 AND DISALLOWED THE AMOUNT OF DM 8,300.84 AND YOUR CLAIM FOR INTEREST. YOUR LETTER DATED AUGUST 7, 1957, YOU ALLEGE THAT THE UNITED STATES IS OBLIGATED TO YOU AS FOLLOWS:

PACKING COSTS------------------------------- DM 1,120.

DOUBLE END-PAPER---------------------------- 949.68

WAGE INCREASES------------------------------ 6,020.

LAWYER'S FEES------------------------------- 211.16

8,300.84

PERSONAL EXPENSES--------------------------- 312.60

TOTAL ---------------------------------- DM 8,613.44

10 PERCENT INTEREST ON THE AMOUNT OF DM 17,878.84.

YOU CLAIM THAT YOU ARE ENTITLED TO PACKING COSTS BECAUSE GOVERNMENT "SHIPPING CLERKS" REFUSED TO ACCEPT DELIVERY OF THE ORDER UNTIL THE BOOKS WERE WRAPPED IN STRONG PACKING PAPER. YOU CLAIM PAYMENT FOR DOUBLE END- PAPER BECAUSE MISS SCHWARTZ, AN OFFICER OF THE EDUCATION BRANCH OF HICOG, ORDERED YOU TO SUPPLY IT.

YOU KNEW THAT D. W. BERNARD WAS DESIGNATED IN THE CONTRACT AS THE CONTRACTING OFFICER AND YOU SHOULD HAVE KNOWN THAT THE "SHIPPING CLERKS" AND MISS SCHWARTZ HAD NO AUTHORITY WHATEVER TO ENLARGE, VARY, OR ALTER THE TERMS OF THE AGREEMENT, ESPECIALLY SO AS TO OBLIGATE THE UNITED STATES FOR ADDITIONAL COSTS, AS CONDITION 9, ENTITLED " CHANGES," IN THE CONTRACT WHICH YOU SIGNED SPECIFICALLY DESIGNATED THE CONTRACTING OFFICER TO ISSUE WRITTEN ORDERS FOR CHANGES IN PACKING AND SPECIFICATIONS. FURTHERMORE, INDIVIDUALS DEALING WITH OFFICERS OF THE GOVERNMENT ACT AT THEIR OWN PERIL AND MUST SEE THAT THE PERSON ACTING IN AN OFFICIAL CAPACITY HAS AUTHORITY TO BIND THE GOVERNMENT. THE FLOYD ACCEPTANCES, 7 WALL. 666, 676; WHITESIDE V. UNITED STATES, 93 U.S. 247, 257; HAWKINS V. UNITED STATES, 96 U.S. 689, 691; UNITED STATES V. AMERICAN SALES CORP., 27 F.2D 389, 392, AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 U.S. 574; J. AND J. W. STOLTS ASSOCIATION V. UNITED STATES, 66 C.1CLS. 1, 7-8. AN OFFICER'S "UNAUTHORIZED ACTS CANNOT ESTOP THE GOVERNMENT FROM INSISTING UPON THEIR INVALIDITY, HOWEVER BENEFICIAL THEY MAY HAVE PROVED TO THE UNITED STATES.' FILOR V. UNITED STATES, 9 WALL. 45, 49; YUHASZ V. UNITED STATES, 109 F.2D 467, 468. AND THIS IS SO EVEN THOUGH THE CONDUCT OF THE SUBORDINATE OFFICER MAY HAVE BEEN SO GROSSLY ERRONEOUS OR SO FLAGRANTLY UNREASONABLE AS TO IMPLY BAD FAITH. UNITED STATES V. BLAIR, 321 U.S. 730.

YOU CLAIM PAYMENT FOR WAGE INCREASES OCCURRING BETWEEN THE DATE OF CONTRACTING IN 1950 AND THE DATE OF DELIVERY IN 1952. YOU STATE THAT YOU WERE CHARGED THIS ADDITIONAL COST BY YOUR PRINTER AND THAT YOU SEEK TO BE REIMBURSED FOR THIS EXPENSE ITEM.

THE CONTRACT WITH HICOG DOES NOT CONTAIN ANY PROVISION FOR REIMBURSEMENT OF INCREASED LABOR COSTS AND YOU AGREED TO PERFORM THAT CONTRACT AT A STIPULATED FIXED PRICE. THEREFORE, YOU ASSUMED THE RISK OF INCREASED PRODUCTION COSTS.

IN REGARD TO THE LEGAL FEES WHICH AROSE IN CONNECTION WITH YOUR CLAIM, ALLOWANCE OF ATTORNEY'S FEES TO A CLAIMANT AGAINST THE UNITED STATES IS UNAUTHORIZED IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION. EDELMAN V. UNITED STATES, 117 C.1CLS. 400, 413; PIGGLY WIGGLY V. UNITED STATES, 112 C.1CLS. 391, 432.

IN ADDITION TO YOUR ORIGINAL CLAIM, YOU NOW CLAIM A REFUND FOR PERSONAL EXPENSES--- POSTAGE, TELEPHONE CALLS AND TRANSPORTATION CHARGES INCURRED IN CONNECTION WITH THE COLLECTION OF YOUR CLAIM. IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION, ALLOWANCE OF THESE EXPENSES IS UNAUTHORIZED.

IN REGARD TO YOUR CLAIM FOR INTEREST, THE PAYMENT OF INTEREST BY THE UNITED STATES ON ITS UNPAID ACCOUNTS OR CLAIMS MAY NOT BE MADE EXCEPT WHERE INTEREST IS STIPULATED BY CONTRACT OR IS DIRECTED BY STATUTE. ANGARICA V. BAYARD, 127 U.S. 251; UNITED STATES V. NORTH AMERICAN TRANSPORTATION AND TRADING CO., 253 U.S. 330; SEABOARD AIR LINE RY. CO. V. UNITED STATES, 261 U.S. 299; SMYTH V. UNITED STATES, 302 U.S. 329; UNITED STATES V. HOTEL CO., 329 U.S. 585.

IN YOUR LETTER OF AUGUST 7, 1957, YOU STATE FURTHER THAT THE SUBJECT CONTRACT WAS EXECUTED AND PERFORMED IN GERMANY AND THAT GERMAN LAW SHOULD APPLY IN THE CONSIDERATION OF YOUR CLAIM. HOWEVER, ALTHOUGH YOU PREDICATED YOUR CLAIM ON GERMAN LAW, YOU DID NOT CITE ANY SPECIFIC GERMAN LAW WHICH WOULD AUTHORIZE ALLOWANCE OF YOUR CLAIM.

A UNITED STATES FORUM MAY TAKE JUDICIAL COGNIZANCE OF ITS OWN COURTS, BUT A UNITED STATES FORUM CANNOT BE PRESUMED TO BE ACQUAINTED WITH OR TO HAVE JUDICIAL KNOWLEDGE OF THE LAW OF A FOREIGN COUNTRY. THE RULE THAT THE UNITED STATES FORUM CANNOT TAKE COGNIZANCE OF THE LAW OF ANOTHER COUNTRY WITHOUT PLEA AND PROOF HAS BEEN CONSISTENTLY MAINTAINED IN THE COURTS OF THE UNITED STATES. CUBA R.R. CO. V. CROSBY, 222 U.S. 473, 479; LIVERPOOL STEAM CO. V. PHOENIX INS. CO; 129 U.S. 397, 445; PIERCE V. INDSETH, 106 U.S. 546, 550-551; DAINESE V. HALE, 91 U.S. 13, 20-21; ENNIS V. SMITH, 14 HOW. 400, 426-427; CHURCH V. HUBBART, 2 CRANCH. 187, 236. WHEN FOREIGN LAW HAS NOT BEEN PROVED, A CLAIM BASED THEREON HAS NOT BEEN ESTABLISHED AND MUST BE REJECTED.

EVEN IF IT IS ESTABLISHED THAT UNDER THE GERMAN LAW YOU WOULD BE ENTITLED TO INTEREST, APPROPRIATIONS OF THE UNITED STATES ARE NOT AVAILABLE FOR THE PAYMENT OF INTEREST FOR REASONS HEREINBEFORE STATED. WITH REGARD TO THE PACKING COSTS AND DOUBLE END-PAPER, NEITHER GERMAN LAW NOR GERMAN CUSTOM WOULD TAKE PRECEDENCE OVER THE SPECIFIC PROVISIONS OF CONTRACT CONDITION 9.

IN LIGHT OF THE FOREGOING, THERE APPEARS TO BE NO BASIS UPON WHICH OUR OFFICE WOULD BE WARRANTED IN AUTHORIZING THE ALLOWANCE OF ANY PART OF THE AMOUNT CLAIMED.